How a patchwork of flawed and inconsistent voting systems could deprive millions of Americans of the right to vote

Transcription

1 How a patchwork of flawed and inconsistent voting systems could deprive millions of Americans of the right to vote

2 STATE REPORT CARDS Rating States On Each Purge Issue Area Examined In The Report States When disfranchised/how restored? How are purge lists compiled? How is match performed? Notice of removal given? AZ Felony convictions: incarceration, probation and parole; limited restoration C - Statewide voter registration system not yet integrated with court system C - No criteria mandated; counties reported using reliable criteria; check twice C - No statute; one county reported giving pre-removal notice CA Felony convictions: incarceration and parole; automatic restoration F - FCD sources not centralized; purge lists sent only to counties; data updated twice annually D -No criteria mandated; 1 county reported using more reliable criteria than other; only check once D - No statute; one county reported giving post-removal notice GA Felony convictions: incarceration, parole and probation; automatic restoration C - Statewide voter registration system not yet integrated with court system C - No criteria mandated; counties reported using reliable criteria; check twice B - Statutory pre-removal notice; two counties reported giving same IL Felony convictions: incarceration and parole; automatic restoration F - FCD sources not centralized; purge lists sent only to counties D - No criteria mandated; counties reported using unreliable criteria; check once F - No statutory or reported notice IA Felony convictions: incarceration, parole and probation; limited restoration. C - No FCD statute; FCD sources not centralized; purge lists sent to state then counties D - No criteria mandated D - No notice statute; one county reported giving postremoval notice LA Felony convictions: incarceration, parole and probation; automatic restoration with restrictions B - FCD sources centralized; purge lists sent to state then counties; courts notify when convictions overturned C - No criteria mandated; counties reported using reliable criteria; check twice B - Statutory pre-removal notice; two counties reported giving same MD Felony or theft convictions: incarceration, parole and probation; limited restoration F - Unclear laws; error prone voter registration database and unreliable FCD F -No criteria mandated; counties reported using unreliable criteria C - No notice statute; one county reported giving preremoval notice NV Felony convictions: incarceration, parole and probation; limited restoration F - No FCD statute; multiple FCD sources; sources not centralized; purge lists sent only to counties F - No criteria mandated; counties reported using unreliable criteria; check once C - No notice statute; one county reported giving preremoval notice NM Felony convictions: incarceration, parole and probation; automatic restoration with restrictions A - FCD sources linked directly to county/state registration database; real time updates B - No criteria mandated; counties reported using reliable criteria; check once C - No notice statute; one county reported giving preremoval notice NY Felony convictions: incarceration and parole; automatic restoration F - FCD sources not centralized; courts send purge lists sent to state/local election agency at their discretion D - No criteria mandated; 1 county reported using more reliable criteria than other; check once at officials discretion A - Statutory pre-removal notice; same reported by two counties who also give reinstatement information OH Felony convictions: incarceration; automatic restoration D - FCD sources not centralized; purge lists sent only to counties D - No criteria mandated; 1 county reported using more reliable criteria than other; check once F - No statutory or reported notice PA Felony convictions: incarceration; automatic restoration A - System eliminates data management N/A N/A SD Felony convictions: incarceration and parole; automatic restoration A - No FCD statute; centralized FCD sources linked to HAVA compliant county/state registration database; real time updates B - No criteria mandated; counties reported using reliable criteria; check twice D - No notice statute; one county reported giving postremoval notice TX Felony convictions: incarceration, parole and probation; automatic restoration. B - No FCD statute; centralized FCD sources; purge lists sent to state then counties D - No criteria mandated; neither county reported using specific criteria; cannot confirm if county double-checks C - No notice statute; preremoval notice reported by one county VA Felony convictions: incarceration, parole and probation; limited restoration B - Centralized FCD sources; purge lists sent to state then counties C - No criteria mandated; counties reported using reliable criteria; check twice B - Statutory pre-removal notice; one county confirmed; other reported giving postremoval notice FCD = Felony Conviction Data

3 Purged! How a patchwork of flawed and inconsistent voting systems could deprive millions of Americans of the right to vote Published October 2004 THE AMERICAN CIVIL LIBERTIES UNION is the nation s premier guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and freedoms guaranteed by the Constitution and the laws of the United States. DEMOS is a public policy organization that seeks to strengthen US democracy and to seek a broadly shared prosperity characterized by greater opportunity. Founded in 1999, Demos work combines research with advocacy melding the commitment to ideas of a think tank with the organizing strategies of an advocacy group. RIGHT TO VOTE is a coalition of eight national civil rights and public interest organizations - the American Civil Liberties Union, Brennan Center for Justice at NYU School of Law, Demos, the Mexican American Legal Defense and Educational Fund, the National Association for the Advancement of Colored People, the NAACP Legal Defense and Educational Fund, the People for the American Way Foundation and The Sentencing Project. These groups came together in 2002 to work collaboratively to end felony disfranchisement through research, public education, voter registration and litigation. The Campaign seeks to broaden discussion of the issue and promote re-enfranchisement nationwide, and supports work in five target states, Alabama, Florida, Maryland, New York and Texas. The Campaign s partners in these states are Alabama Alliance to Restore the Vote, Florida Rights Restoration Coalition, the Maryland Voting Rights Restoration Coalition, New York Unlock the Block Campaign and the Texas Unlock Your Vote Campaign. For further information, please visit ACKNOWLEDGMENTS This report was written by Laleh Ispahani, Voting Rights Fellow at the ACLU with Nick Williams, Policy Analyst at Demos and with support from RTV and RTV partners. The statements made are the responsibility of the ACLU and Demos. The ACLU and Demos gratefully acknowledge the generous support for their felony disfranchisement work provided by the Carnegie Corporation of New York and the Tides Foundation (with funds from the Ford Foundation, JEHT Foundation, Open Society Institute, and the Sandler Family Supporting Foundation).

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5 A Voting Rights Report Table of Contents Introduction Executive Summary Issue I: Purge List Compilation Federal Felony Conviction Data Out-Of-State Felony Conviction Data In-State Felony Conviction Data Issue II: Notification Of Persons Matched Good Practice For States That Disfranchise Incarcerated Felons Only Good Practice For States That Disfranchise Incarcerated Felons, Felony Parolees And/Or Probationers Bad Practice: States That Use Few Matching Criteria And Do Not Double-Check Matches Issue III: Criteria Used To Determine Matches Good Practice: States That Statutorily Mandate Pre-removal Notice And Opportunity To Contest Purges Less Acceptable Practice: States That Report Providing Non-statutory Pre-removal Notice Bad Practice: States That Report Providing Non-statutory Notice After Removal Worst Practice: States That Provide No Notice At All Recommendations State Purge Summaries Endnotes

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7 A Voting Rights Report Purged! How a patchwork of flawed and inconsistent voting systems could deprive millions of Americans of the right to vote INTRODUCTION The flawed purges of people with felony convictions from Florida s voter rolls during the 2000 and 2004 elections are now well known. In 2000, thousands of legal voters were purged from Florida s voter rolls. One list sent to Florida officials erroneously included the names of 8,000 Florida residents who had committed misdemeanors not felonies in Texas. In 2004, despite Florida s sizable Hispanic population, the state s purge list contained only 61 Hispanic surnames, and also mistakenly included thousands who had had their voting rights restored. After these and other errors were publicized, the state withdrew its felon purge list. But under Florida law, county election officials may still purge voters based on their own, locally generated lists. While Florida s purges of felons from voter rolls in 2000 have received national attention, little is known about the procedures other states use. To shed some light on these procedures, we surveyed the purge processes of 15 states. The states have a wide variety of disfranchisement laws. All except Maine and Vermont prohibit incarcerated felons from voting. Thirtyfive states restrict those on parole, 31 of them also restrict those on probation, and seven deny the right to vote to all felons who have completed their sentences. In seven other states, described here as mixed status states, a person can permanently lose the right to vote based on criminal history, type of offense, or when the offense occurred. The result: Nearly 5 million American citizens, two percent of the voting-age population, have lost the fundamental right to participate in our political process. African-American men make up one and a half million of this number, 13 percent of black men. This is a rate 7 times the national average. Worse, three in ten of the next generation of black men can expect to be disfranchised at some point in their lives. We surveyed Arizona, California, Georgia, Illinois, Iowa, Louisiana, Maryland, Nevada, New Mexico, New York, Ohio, Pennsylvania, South Dakota, Texas and Virginia. Given the variations in state disfranchisement policies, we selected states in each of the categories above. 1 This survey reflects our research of state law as supplemented by conversations with representatives from each state s chief elections agency and two county election agencies. Through our research and conversations, we sought to answer the following questions: (1) how does the state compile its felon purge list?, (2) how do the state s elections officials match people with felony convictions against individuals listed on their voter registration list before purging them from the rolls?, and (3) does the state notify the individuals deemed matched that they will be or have been purged? 1

8 PURGED! Our key findings reflect that states, even those with identical disfranchisement policies, conduct their purges with great unevenness: Purge List Compilation One-quarter of the states surveyed compile their purge lists without reference to any legislative standards whatever, while half the states surveyed do so using only an individual s name and address. Criteria Used to Determine Matches No state surveyed has codified any specific or minimum set of criteria for its officials to use in ensuring that an individual with a felony conviction is the same individual being purged from the voter rolls. Notification of Persons Matched Two-thirds of the states surveyed do not require elections officials to notify voters when they purge them from the voter rolls, denying these voters an opportunity to contest erroneous purges. Our examination was limited to purge structures and procedures, because the actual purge lists unlike Florida s 2004 purge list, which ultimately became available to the public were not available to us. Still, we were able to identify myriad structural and procedural flaws such as the lack of standardized or sufficient felony conviction data and inadequate matching and notification procedures issues that also contributed to Florida s flawed 2000 and 2004 purges. January We offer recommendations aimed at correcting the deficiencies in the policies examined, and show that purges can be conducted in ways that both maximally protect voters and minimally burden purge administrators. Our history of purging felons from the voter rolls is a shameful one. Purges were first instituted immediately after African Americans were granted the franchise. After the 15 th Amendment was ratified in 1870, forbidding states from depriving citizens of the vote because of race, color, or previous condition of servitude, many states deliberately adopted purge policies and revised their criminal disfranchisement laws so as to prohibit many blacks from voting. It is sad that even in the twenty-first century minorities are fighting for the right to vote. The act of voting, of having a voice in one s own government, is one of America s founding principles. The National Voter Registration Act of 1993 recognized as much in its preamble: The right of the citizens of the United States to vote is a fundamental right discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities. 3 Unfair and unjust disfranchisement of citizens should not be tolerated and by no means should it be law. In each issue area, some states stood out as employing better and others worse practices than their counterparts. We highlight these practices hoping to spur legislative thinking about reform of state purge processes, particularly in light of the federal Help America Vote Act of 2002 (HAVA) which requires states to establish official, uniform and nondiscriminatory statewide computerized voter registration lists that are centralized and interactive by 2

9 A Voting Rights Report EXECUTIVE SUMMARY In all three issue areas examined, we found inconsistent practices both across and within states, even in states with identical disfranchisement laws. We offer detailed recommendations for remedying these inconsistencies in the last section of this report, and attach detailed state-by-state purge fact sheets to the end of this report. 4 Issue I: Purge List Compilation Findings: Purge lists are vulnerable to inaccuracy given the manner in which they are compiled. Generally, they are drawn from information provided by a variety of sources at different times. One-quarter of the states surveyed have no legislation that specifies the type of felony conviction data in-state source agencies must convey, while half of the states surveyed only require in-state source agencies to convey an individual s name and address, a high risk proposition where an individual has moved and matching is done on name alone. Only one state election agency required notice of overturned in-state felony convictions. No state legislated the type of felony conviction data required from other states about its residents, or required other states to send notices of overturned felony convictions. Recommendations: To reduce the burden on elections administrators, whose resources are already stretched, and in turn, promote greater respect for voter rights, we advocate streamlining list compilation. This can be partly accomplished through each state s HAVA compliance process by requiring coordination and connection between relevant state agencies. It also involves codifying and standardizing the felony conviction data that source agencies and other states provide; requiring source agencies to provide felony conviction data simultaneously and frequently; and including notification of overturned felony convictions from state to state and within states. Issue II: Criteria Used to Determine Matches Findings: Not a single state surveyed has codified any specific or minimum set of criteria that must be used by officials in ensuring that a person with a felony conviction is the same person being purged from the voter rolls. Accordingly, states, and in many cases, the counties within them, use quantitatively and qualitatively different information. Use of inconsistent matching criteria has the deleterious effect of treating similarly situated voters unequally. Recommendations: In compliance with the HAVA requirement that states develop matching criteria, to provide clear guidance to officials conducting the matches, and to equally protect all voters, states should adopt statutes that specify and standardize matching criteria. These statutes should prescribe the use of numerous matching criteria, require exact matches of felony conviction and voter registration data, and require that matches be double-checked at state and county levels. Matching criteria should include first name, middle name, last name, gender, maiden name, alias, date of birth, place of birth and driver s license number if any. Issue III: Notification of Persons Matched Findings: Only four of the 15 states surveyed address this issue of due process by statute. Of the 11 others, five reported providing varying types of notice and an opportunity to contest the purge; four reported notifying people only after they have been purged, and two reported providing no notice at all. 3

10 PURGED! Recommendations: All states should adopt legislation that requires state officials to send a first notice by certified, forwardable mail; follow up by telephone where possible; accept replies in writing or in person; include a stamped, addressed envelope for replies, and allow a minimum of 30 days for a reply. Where no response is received to the first notice, a second notice should be mailed that permits another 14 days for a response and includes state-specific information regarding reinstatement of the right to vote and/or re-register. Purges should be completed by 90 days preceding an election. 4

11 A Voting Rights Report ISSUE I: PURGE LIST COMPILATION States compile their purge lists by collating information from a number of different sources. All states receive felony conviction data from (a) United States attorneys, concerning their residents commission of federal felonies; (b) other states chief elections agencies, concerning their residents commission of felonies in other states; and (c) in-state agencies, concerning their residents commission of felonies in state. With the exception of Pennsylvania, in several states surveyed, in-state felony conviction data is provided by multiple agencies, including judicial and law enforcement agencies, to the elections agency compiling the purge list. Moreover, in many states, different agencies provide felony conviction data at different times. The sources of felony conviction data, their content, and the degree of synchronicity between them give us a sense of the lists accuracy and efficacy. We highlight South Dakota and New Mexico, because their procedures are most streamlined, as exemplary of good practices, and Maryland, whose procedures seem almost haphazard, as exemplifying bad practices. a. Federal felony conviction data All states chief election agencies receive notices of their residents convictions in federal district courts, pursuant to the National Voter Registration Act (NVRA). 5 The NVRA requires United States attorneys to give written notice of federal felony convictions to chief state elections officials. 6 The notices must contain a person s name, age and residence, date of entry of the judgment, a description of the offenses of which the individual was convicted, and the sentence imposed. 7 The nature of the information that United States attorneys send state elections officials is critical in helping them identify ineligible voters, and while the NVRA at least provides a uniform standard, federal courts might also send these agencies additional available data such as a state driver s license number. The NVRA also requires federal courts to notify state election officials when federal felony convictions are overturned. 8 b. Out-of-state felony conviction data State chief election agencies also receive felony conviction data from other states in which their residents have been convicted of felonies. We were unable to locate state statutes that, like NVRA provisions, specify the information one state must send to another when providing such notice. Without such uniform standards, states may not send the best available data, making it difficult for receiving states to accurately identify ineligible voters. We were similarly unable to locate statutes concerning state-to-state notification of overturned felony convictions. Because different states disqualify individuals for different crimes, out-of-state conviction data should always include the description of the crime committed. 9 c. In-state felony conviction data Variations in practice in the collection of instate conviction data are great. For example, eight states compile their purge lists at the state level, six do so at the county level, and one state has no purge list. Some states criminal justice and judicial agencies are more connected to their boards of election than those of other states. Some states have statewide, centralized voter registration databases, while oth- 5

12 PURGED! ers do not. Louisiana aside, no state surveyed statutorily mandates in-state notification of overturned felony convictions. And in only two states does the department of corrections notify the board of elections when an individual s sentence is complete. Rather than further belaboring these intricacies here, we proceed directly to examples of good and bad practices. (Detailed information on individual state purge practices may be found in the addendum to this report.) South Dakota election officials reported receiving a relatively extensive and nearly standardized set of data that includes gender and birth place. Furthermore, all information is updated in real time, which effectively precludes purges based on outdated information. i. Good practice: centralized databases, applicable to all states South Dakota, which disfranchises incarcerated felons and felony parolees, is far along in its HAVA compliance, 10 and we recommend replication of its system. 11 The state uses a system that is centralized at the state level, receives instate felony conviction data from a single source (its courts), and updates information in real time. One drawback, however, is the absence of legislative standards concerning the nature of the felony conviction data the state s courts must convey to the agency compiling the list (such as the NVRA provision that regulates what type of federal felony conviction data United States attorneys must provide states chief election agencies). South Dakota has a computerized statewide registration database, which is HAVA compliant and is connected to the state s Unified Judicial System, a computerized database of all state courts (UJS). This database has records of all persons who have passed through the state s criminal justice system since United States attorneys and the chief state election agencies of other states both report felony convictions to the secretary of state s office. The information is then sent to the board of elections for the county where the person was last registered. For instate convictions, there is a single source of information, the UJS. UJS court clerks also send felony conviction data to the elections division of the secretary of state s office. The information is then forwarded to the board of elections for the county where the person was last registered. Though we were unable to find a statute prescribing the nature of the data UJS court clerks must convey, multiple elections officials reported receiving a relatively extensive and nearly standardized set of data that includes gender and birthplace. 12 Furthermore, all information is updated in real time, which effectively precludes purges based on outdated information. New Mexico, which disfranchises prisoners, parolees and probationers, also employs commendable compilation practices. New Mexico has a centralized system that is administered at the county level. 13 Because it is centralized, simultaneously updated, and requires standardized felony conviction data, New Mexico s compilation process is more streamlined that most of the others surveyed. 14 Unlike South Dakota, New Mexico statutorily requires its in-state sources of felony conviction data to provide specific and uniform data. New Mexico law requires that courts submit felony conviction data that includes a person s full name, age, gender, marital status, birthplace, birth date, social security number, date of conviction and last known address. 15 Each county s courts and election boards are electronically connected. Each county is also electronically connected to the statewide voter registration database. 6

13 A Voting Rights Report These connections allow felony conviction data to be updated in real time. 16 ii. Good practice: an interim solution for states that disfranchise only incarcerated felons Although limited in applicability and a short-term solution, Pennsylvania s absentee ballot statute is nonetheless a significant improvement on the procedures in place in the states surveyed with analogous disfranchisement policies. Applicable only to states that, like Pennsylvania, disfranchise incarcerated felons, 17 the Pennsylvania statute is also only a temporary fix for the period until states have instituted their HAVA-mandated centralized voter registration systems, including state-specific purge procedures. Realistically, however, since only nine states have not requested waivers of compliance, it will take most states well beyond the 2006 deadline to comply with HAVA and to include the state-specific safeguards we recommend in this report. 18 A Pennsylvaniastyle law may be a good interim measure for states that disfranchise incarcerated felons only. Pennsylvania does not purge felons from its voter list. Instead, the state employs an innovative and administratively simple procedure to keep incarcerated felons from voting: Under Pennsylvania law, absentee ballots are not sent to those mailing requests for them from prison addresses. 19 Illinois and Ohio are the other states surveyed here that, like Pennsylvania, disfranchise prisoners only. We suggest that Illinois and Ohio enact similar absentee ballot statutes and abandon their purge lists, thereby reducing the administrative burdens of managing these lists and decreasing the likelihood of errors. Concomitantly, these states would also dispense with having to re-register these voters. iii. Bad practice: complex disqualification schemes in mixed status states List compilation in Maryland is onerous not least because of the state s convoluted disfranchisement law. 20 State officials receive in-state felony conviction data from the state s Judicial Information System (JIS) and courts. 21 Officials must sort through the data and separate the names of persons convicted of infamous crimes and non-infamous crimes, because only the former crimes render an individual ineligible to vote. 22 Officials also have to parse through misdemeanor and felony conviction data because some misdemeanors also disqualify individuals from voting in Maryland. Concomitantly, these states would also dispense with having to re-register these voters. Moreover, Maryland does not use a centralized database and data is updated about once a month. (Even with a statewide criminal justice database, Maryland s complicated disfranchisement law would make accurate purging difficult.) In addition, Maryland law only requires its sources of felony conviction data to send an individual s name and address to compiling agencies. Enactment of a uniform law requiring courts to transmit first name, middle name, last name, alias, maiden name, date of birth, place of birth, gender, date of conviction, type of crime, and driver s license number if any, would alleviate burdens for both state and local election officials. Thus, the state s complex disfranchisement law, in addition to its lack of a centralized database, use of insufficient standardized felony conviction data, and infrequent updates of that data, make list compilation an unwieldy task. One local election official in Montgomery County admitted as much when she described the system as kind of disorganized. 7

14 PURGED! ISSUE II: CRITERIA USED TO DETERMINE MATCHES In removing individuals with felony convictions from the voter rolls, we found that none of the states surveyed has codified any specific or minimum set of criteria for elections officials to use to ensure that an individual with a felony conviction is the same individual being purged from the voter rolls. 23 The practical implications of this is that these states, and in many cases the counties within each of them, conduct purges using quantitatively and qualitatively different information. This in turn means certain states and counties better safeguard voters against being improperly purged than other states and counties. Apart from Pennsylvania, then, which does not engage in felon purging, no state surveyed afforded adequate protection to voters it purged. Based on oral accounts of procedures followed, however, South Dakota appears to use procedures that if codified may be adequate to verify matches. 24 In removing individuals with felony convictions from the voter rolls, we found that none of the states surveyed has codified any specific or minimum set of criteria for elections officials to use to ensure that an individual with a felony conviction is the same individual being purged from the voter rolls. a. Good practice for states that disfranchise incarcerated felons only Until states complete their implementation of HAVA-mandated statewide computerized voter registration databases, which when modified to include specific matching criteria will render matching a simpler task, Pennsylvania provides the best system for states like it that disfranchise incarcerated felons only. There, no matching is conducted because the state never purges felons from its voter list, instead simply denying absentee ballots to prisoners. Of the 15 states surveyed, Illinois and Ohio, which like Pennsylvania, disfranchise prisoners only, could, by enacting similar absentee ballot statutes, abandon their purge lists, thereby reducing the administrative burdens of managing these lists and preventing erroneous purges of eligible voters. 25 They would concomitantly dispense with having to re-register them. 26 b. Good practice for states that disfranchise incarcerated felons, felony parolees and/or probationers The procedures followed by South Dakota, if codified, could serve as a solution for states that also disfranchise felony parolees and/or probationers and cannot therefore rely on the Pennsylvania model. Though South Dakota has not enacted statutes mandating either a specific or minimum set of criteria officials must use to perform matches, reports from county officials indicate that, when conducting matches, state and county officials use a greater number of criteria than most states surveyed and double-check matches at state and county levels. 27 Both state and county officials reported that upon receiving felony conviction data from the state s Unified Judicial System, the first step in performing a match was for state officials to check the following ten pieces of felony conviction data against the statewide registration database: first name, middle name, last name, social security number, date of birth, gender, place of birth, date of conviction, age, and address. 28 Though no statute specifies what matching criteria officials must use, or requires all 10 items to 8

15 A Voting Rights Report match, a state elections official reported that only if an individual appears in the statewide database and is a clear match is the information sent to the appropriate county official responsible for making the final determination before removing the person from the county s master registration list (which contains more pieces of information than the statewide registration database). If the person does not appear in the statewide registration list, the information is not forwarded to the county and is usually discarded. When there is any doubt or a need for additional corroborating information, officials telephone the Department of Justice or the court that issued the judgment before sending the names to the county boards of election where the person is registered. Once county officials confirm the match, they then remove the person from county registration records. This means that the match is effectively checked twice, first at the state and then at the county level, where the more replete master lists reside. The county board of elections also notifies the secretary of state that the individual has been removed from the county file and should be flagged in the statewide registration database. 29 c. Bad practice: States that use few matching criteria and do not double-check matches Counties in Maryland and Nevada report using among the least extensive data in conducting matches and do not double-check matches at state and county levels. One Frederick County, Maryland official reported that she had only ever seen matches conducted using name and date of birth. Admitting that the system [was] disorganized, Maryland s Montgomery County election director advised us that Montgomery County matched name, date of birth and address. 30 Additionally, Maryland conducts matches at only the county level. In Nevada, Clark County matched using only name and date of birth, while Washoe County used name, date of birth and sometimes address. A Clark County official reported that she might find a match where even name and date of birth did not match exactly. Like Maryland, Nevada also conducts matches at only the county level. 31 When conducting matches, South Dakota state and county officials use a greater number of criteria than most states surveyed and doublecheck matches at state and county levels. ISSUE III: NOTIFICATION OF PERSONS MATCHED The states surveyed are also inconsistent concerning notification of those they purge from their voter rolls. Only four of the 15 states surveyed Georgia, Louisiana, New York and Virginia address this important issue of due process by statute. Of the 11 others, five Arizona, Maryland, New Mexico, Nevada and Texas report nevertheless providing varying types of notice and an opportunity to contest the purge. Four states California, Iowa, South Dakota and Virginia report notifying people after they have been purged, and two states, Illinois and Ohio, provide no notice at all. a. Good practice: States that statutorily mandate pre-removal notice and opportunity to contest purges Only four states Georgia, New York, Louisiana and Virginia statutorily require their elections officials to notify people to be purged prior to the disfranchisement. The pre- 9

16 PURGED! scribed notice is not always meaningful, however. Louisiana s statute, for example, requires individuals to appear before the Board of Elections within 21 days of the date of the postmark on the notice. Georgia s statute provides for even less time, 14 days. Individuals may have moved, and even forwarded notices may not reach them in time to allow them to contest erroneous purges. Only four of the 15 states surveyed Georgia, Louisiana, New York and Virginia address this important issue of due process by statute. New York s statutory notification process is the best though it, too, has serious shortcomings. The county board of elections first mails a forwardable letter to the individual to be purged to that individual s last known address stating that his/her name will be removed from the voter registration rolls if he or she fails to respond in person or in writing within 14 days. The mailing includes a postage-paid card that asks the person to list the reasons why he or she should not be removed. By allowing the person to respond in writing as opposed to in person, as well as including a postage-paid return statement, New York s election officials make the process slightly less onerous for people who may have been erroneously removed. If the individual fails to respond, New York officials mail another notice advising of the right to re-register or apply to a court for reinstatement, whichever is appropriate. Sending individuals who have lost their right to vote a second notice, and one containing information regarding reinstatement, is a unique and good practice for other states to adopt. Still, the New York statute s provision of 14 days to respond is little time for individuals to receive and prepare to contest an erroneous removal, particularly where people have moved and the letter is forwarded to the new address. Nor is regular mail, as provided in the statute, adequate for this type of notification. Notices must be sent by certified, forwardable mail to ensure that the correct person receives them. Officials might also telephone individuals when contact information is available, in order to ensure that notices were received. To best protect voting rights, we suggest that courts, departments of corrections and related agencies notify people convicted of felonies of their right to vote at every possible point in the process. At the very first point in time that an individual becomes ineligible to vote when a defendant is being sentenced to prison or probation, where applicable, for a felony crime the judge should advise defendants that they will lose the right to vote and when and how they may regain the right. When paroled, the parole board or parole officers should be required to advise parolees if they are, or when they will be, eligible to vote or register. In states where individuals can vote while on probation, the sentencing court or probation officers should inform probationers that they can vote. These notifications will go a long way toward dispelling the now welldocumented confusion surrounding exfelons eligibility to vote. 32 b. Less acceptable practice: States that report providing non-statutory pre-removal notice Officials in Arizona, Maryland, Nevada, New Mexico and Texas report that, though not mandated by statute, they also notify individuals and permit them the opportunity to respond prior to purging their names from the voter rolls. Absent a mandatory, prescribed notification process, notification is discretionary, inconsistently conducted and there is no legal recourse for persons wrongly removed from voter registration lists. For example, Maryland 10

17 A Voting Rights Report officials reported that some counties allow two weeks for a response but others longer. In Texas, the Program Director of the Voter Registration Department told us that local registrars mail notices advising individuals that their registrations are in jeopardy; these mailings include a questionnaire asking whether the individual has ever served time, and allow up to 30 days for individuals to respond. But this practice could only be confirmed by one of two counties we contacted. In Arizona, a Pima County elections official stated that before removing anyone from the registration list, the county sends two letters of notification, but officials in Maricopa County could not confirm this. Absent a statute delineating a reasonable time for a reply, followed by telephone calls and an additional notice where necessary, such practices are discretionary and provide voters little real protection. c. Bad practice: States that report providing non-statutory notice after removal Though these states do not address notification by statute, officials in California, Iowa, South Dakota and Virginia reported a practice of notifying individuals they purge from the registration lists after the fact. In Iowa s Linn County, an election official reported mailing notices to the last known addresses of those purged, advising us that individuals purged could later correct any mistakes. In Virginia, an election official in Fairfax County told us that the county mails a letter to the person purged explaining the reason therefor. Elections officials in two California counties reported following different procedures when individuals are purged: San Francisco County s Election Supervisor reported taking no action as doing so would increase the office s workload, while Los Angeles County s assistant county recorder told us that office mails a letter to the individual s last known address after purging the individual. The letter also advises individuals that if they believe they were wrongly removed, they should contact the registrar s office immediately. South Dakota county election officials, like California s, reported contradictory notification practices: Pennington County s election supervisor reported notifying individuals when their registration had been cancelled, but an election official in Minnehaha County scoffed at the idea asking, Why would we do such a thing? States with inconsistent notification practices illustrate the problems inherent in leaving this issue to the discretion of county officials. Because these states reported notifying individuals only after they are removed, they place the entire burden of contesting and re-registering on those erroneously purged, in whatever time remains before the next election, if any. As a result, individuals so notified may not know that they have been erroneously purged until they go to the polls to cast a ballot. d. Worst practice: States that provide no notice at all Illinois and Ohio neither address notification by statute, nor did officials report any informal practice of notifying individuals purged from voter registration lists. Without affirmative action by state and/or county officials to alert individuals that they will be removed from the voter registration records, the possibility of error increases dramatically and affords the voter no protection against inadvertent disfranchisement. 11

18 PURGED! RECOMMENDATIONS Issue I: Purge List Compilation Purge lists are vulnerable to inaccuracy because they are compiled by collating felony conviction data from United States attorneys, other states chief election agencies, and instate agencies. Given this fact, the mechanics of list compilation must be streamlined as much as possible through fast and full compliance with HAVA s requirement that states establish official, uniform and nondiscriminatory statewide computerized voter registration lists that are centralized and interactive. These centralized systems must be enhanced to account for state-specific information, including state law, that affects purges. These centralized systems must involve a high degree of coordination of felony conviction data among courts, departments of corrections, boards of elections, departments of motor vehicles and other relevant agencies. These centralized systems must include two-way communication between departments of corrections and boards of elections so that departments of corrections notify boards of elections when individuals with felony convictions become eligible to vote again. In those mixed status states with waiting periods, the date of an individual s release must be conveyed to the board of elections with instructions that the individual appear eligible on the rolls in the applicable number of years. In permanent disfranchisement states, communications must be three-way, among the board of elections, department of corrections, and the agency that has the authority to restore the right to vote. In many states, the various sources of felony conviction data provide it to the compiling agency at different times. This problem is magnified where there is no central repository of felony conviction data. Information from the different sources of felony conviction data must reach the compiling agency at the same time, and be updated in real time, so that purges can be based on the most recent information. While federal law requires United States attorneys to provide specific, standardized information concerning individuals convicted of federal crimes, one-quarter of the states surveyed do not require their source agencies to provide any specific or uniform felony conviction data, and half the states surveyed require only name and address. States must require their sources of felony conviction data to provide the compiling agency standardized felony conviction data. Departments of corrections, courts and boards of elections should collectively develop sets of standards that include first name, middle name, last name, maiden name, alias, date of birth, place of birth, gender, date of conviction, type of crime, and driver s license number if any. This will facilitate the matching process and will eliminate many common errors. With respect to out-of-state felony conviction data, no state required standardized felony conviction data of other states. 12

19 A Voting Rights Report Without uniform standards, sending states may not send the best available felony conviction data, which in turn makes it harder for receiving states to differentiate eligible from ineligible voters. States should require the same felony conviction data as for in-state felony convictions. (See recommendation above.) Because state disfranchisement laws differ, out-of-state conviction data should include a description of the crime in question. When a person completes his or her sentence or has his or her rights restored, the state election agency originally notified of the conviction should be notified that the person is eligible again. In 14 of 15 states surveyed, we did not find state law provisions, like NVRA Section 1973gg-6(g)(4), requiring notification of overturned felony convictions both from state to state and within states. States should adopt statutes that, like NVRA, require state-to-state, and in-state, notification of overturned felony convictions. In both cases, courts would be required to notify the relevant board of elections of overturned convictions. When this occurs, the individual should not have to re-register. Issue II: Criteria Used in Matching None of the states surveyed has codified any specific or minimum set of criteria that must be used by officials in ensuring that a person with a felony conviction is the same person being purged from the voter rolls. Statutes that specify and standardize matching criteria are essential to provide clear guidance to officials conducting the matches and to equally protect similarly situated voters. Officials must be trained to strictly adhere to these criteria, given our finding that even in states with standardized criteria, officials exercising their discretion erroneously purged voters, by using less than all available criteria for matching purposes. States, and counties within them in many cases, conduct purges using quantitatively and qualitatively different information, better safeguarding some voters against improper purges than others. Matching criteria should be numerous including first name, middle name, last name, alias, maiden name, date of birth, place of birth, gender, date of conviction, type of crime, and driver s license number if any. Matches should be double-checked at state and county levels. An exact match of felony conviction data and voter registration data should be required. Absent an exact match, we recommend seeking corroboration from courts or law enforcement agencies or by contacting the alleged felon, but in no event removing that individual s name from the voter registration list. Issue III: Notification of Persons Matched Only four of the 15 states surveyed address notification by statute. Even New York s statute, the best of those surveyed, was deficient in the short time it allowed for a response. All the states surveyed should enact statutes that require state elections officials to: 13

20 PURGED! STEP 1: Send a first notice by certified, forwardable mail advising the addressee that his or her registration is in jeopardy because that individual s voter registration data has been matched with the data of an individual with a felony conviction. Include a stamped, addressed envelope for replies and state that replies will be accepted in writing or in person. STEP 2: Follow up by telephone where possible. STEP 3: Allow a minimum of 30 days for a reply, as the individual may have moved or be traveling. STEP 4: If no response is received to the first notice, send a second notice stating that the individual s name is being removed from the rolls in two weeks unless he or she responds to this notice. Include information regarding reinstatement of the right to vote and/or reregister. In states where individuals can vote on probation, the sentencing court or probation officers should inform probationers that they can vote or register to vote. To better protect voters who have had their rights restored or were erroneously purged from the voter lists, elections officials should keep a permanent record of all persons removed, preferably in a computerized database, including the date and reason for ineligibility and the date and reason a notice of ineligibility was sent. Under HAVA, persons whose names do not appear on voter registration lists are allowed to cast provisional ballots. When election officials check their active voter registration files, they should also check files that contain the names of voters whose rights were suspended due to a felony conviction. STEP 5: Check the most current information before purging voters. STEP 6: Complete purges by 90 days before an election. To dispel the now well-documented confusion surrounding ex-felons eligibility to vote, people convicted of felonies should be advised of their right to vote at every possible point: When a defendant is being sentenced to prison or probation, where applicable, for a felony crime, the judge should advise the defendant that he/she will lose the right and when and how he/she may regain the right. When paroling an individual, the parole board or parole officers should be required to advise parolees if they are, or when they will be, eligible to register or vote. 14